Acquiescence is a question of fact, and in the absence of a specific plea and evidence indicating acquiescence, an injunction can be granted under Section 41 of the Specific Relief Act, 1963, to restrain a continuing breach of a lease agreement.

Jawahar Lal Gupta, J.

1. The suit of the plaintiff-respondent for a permanent injunction restraining the defendant from carrying on business of running a school/college on the first and second floors of Shop-cum-Flat No. 35, Sector 23, Chandigarh, was decreed by the learned trial Court. The appeal filed by the defendant having been dismissed, he has approached this Court through the present second appeal. On May 18, 1994, the sole appellant passed away. CM. No. 607-C/1997 was filed on January 30, 1997, to implead his legal representatives. By a separate order of date, this application was allowed.

2. Mr. Gill, learned counsel for the appellants, has contended that the Courts below have erred in granting an injunction. Learned counsel has referred to the provisions of Section 41 of the Specific Relief Act, 1963 , to contend that an injunction cannot be granted "to prevent a continuing breach in which the plaintiff has acquiesced". It has also been suggested that such a relief is not admissible when an equally efficacious relief can be obtained by any other mode or proceeding or when the conduct of the plaintiff has been such as to disentitle her to the assistance of the Court. Learned counsel has referred to the Full Bench decision of this Court in M/s Ram Gopal Banarsi Dass v. Satish Kumar, (1985-2)88 P.L.R. 457 (F.B.). The claim made on behalf of the appellants has been controverted by the learned counsel for the respondent.

3. The sole question that arises for consideration is did the plaintiff acquiesce in the breach committed by the appellants?

4. A perusal of the plaint shows that the plaintiff had prayed for the issue of an injunction on the ground that the defendant had "started using the premises for running an academy/school/College....." which was not permissible under the rules and the provisions of the Capital of Punjab (Development and Regulation) Act, 1952, and the rules made thereunder. It was specifically pleaded that the premises had been let out for the purpose of residence. The defendant had filed a written statement. It was not pleaded that the plaintiff had ever become aware of the winning of school/college/academy or that she had in any manner acquiesced in this breach. Even when the parties were leading evidence, the plaintiffs mother Kamal Parkash Kaur who was also her attorney had appeared as PW1. It was not even suggested to her that there was acquiescence in the defendants running of an educational institution in the residential premises. The defendant did not appear as a witness before the Court. However, his son who is also his special attorney and is now one of the appellants had appeared as DW1. He stated that the premises in dispute had been taken on rent by his father in January, 1966. No rent note had been written. However, the building had been taken on rent for the purpose of running the National College. In his cross examination, he admitted that in the year 1966, his father was working as a Clerk in the Punjab School Education Board. He remained in service till the year 1975 when he had retired. He had not taken permission from his employer for running a college. However, Mr. Gill has not been able to refer to any suggestion in the written statement or the evidence that the plaintiff-respondent had at any stage acquiesced in the running of an educational institution in the demised premises.

5. A perusal of the pleadings as well as the oral testimony of the witnesses shows that it had neither been pleaded nor stated on oath that the plaintiff had ever acquiesced to the running of a college in the demised premises. In the absence of a specific plea, the objection raised by the learned counsel for the appellants on the basis of section 41(g) cannot be sustained. Equally, it cannot be said that the injunction should be denied of because the plaintiff had the remedy of initiating proceedings under the Rent Restriction Act. Still further, nothing has been pointed out to show that the con